The Protection of Performers Under U.S. Law in Comparative Perspective

by Daniel Gervais, Vanderbilt University Law School

from Volume 5, Issue 1 (Spring 2015)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: The majority opinion of the Ninth Circuit panel in Garcia v. Google, Inc. stands for the proposition that an actor has copyright in her performance. The case was described as horrific and generated a significant amount of traffic on listservs and social media.

In the opinion, Chief Judge Kozinski made three key points. First, that there was originality in the performance, as required under Feist. The Feist court found that creative choices were necessary to generate sufficient originality to warrant copyright protection. Using Feist as backdrop, the Garcia majority found that:

An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., . . . . That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all.

Second, Chief Justice Kozinski found that a performance could be a derivative work of the script, noting that an unauthorized derivative received no copyright protection.

Third, he dismissed what might seem like a Coasean argument on the impossibly high transaction costs if a thicket of copyrights were recognized in film because:

As the above discussion makes clear, any analysis of the rights that might attach to the numerous creative contributions that make up a film can quickly become entangled in an impenetrable thicket of copyright. But it rarely comes to that because copyright interests in the vast majority of films are covered by contract, the work for hire doctrine or implied licenses.

The dissent also makes interesting points, in particular in drawing a clear distinction between a performance and a work in a copyright context—a distinction which, the dissent opines, is solidly anchored in the text of the statute:

Section 101 of the Act is also instructive, because it differentiates a work from the performance of it. It defines “perform a ‘work’” to mean “to recite, render, play, dance oract it.” 17 U.S.C. § 101 (emphasis added). Given this provision, it is difficult to understand how Congress intended to extend copyright protection to this acting performance. . . . An acting performance resembles the “procedure” or “process” by which “an original work” is performed. . . . Therefore, “[i]n no case does copyright protection” extend to an acting performance, “regardless of the form in which it is described, illustrated, or embodied in” the original work.

Wherever this case ends up in the courts, it raises fundamental questions about US law as it applies to performed works. This Essay uses a comparative lens to shed some hopefully useful light on the debate. The Essay proceeds essentially in two parts. First, the Essay explores and critiques the international protection of performers’ rights using both history and policy as focal points. The following part describes the protection of performers and other owners of “related rights” in US law and explains the differences that adopting a related rights regime would bring about in the United States.